Can Anyone Help HelpAReporterOut Understand That Competition Is Perfectly Legal

from the nothing-wrong-with-competition dept

If you're a reporter or in PR, you've almost certainly heard of HelpAReporterOut or HARO. It's a service started by Peter Shankman a few years back to connect "sources" to reporters looking for sources. The "creation story" was that Shankman kept hearing from reporters asking for sources on certain stories, since Shankman is a notorious networker, and so he decided to set up a mailing list to facilitate such intros. Of course, Shankman also admitted that he was doing this to take on ProfNet, a similar service that has been around for years, which PRNewswire purchased, and which isn't free for everyone. After Shankman got enough subscribers, he eventually started selling ads and set up a simple website for the service. Apparently, it makes a pretty good amount of money.

However, it seems that he doesn't like upstart competition. Ryan Waggoner set up a site called PRManna.com, which he had no problem admitting was inspired by HARO, but which focused on just startups and tech bloggers/journalists. Rather than being flattered, however, Shankman sent out the lawyers who sent out a cease and desist with a bunch of claims that seem unlikely to hold up in court. You can read the full cease & desist (pdf) to see all the arguments.

Basically, Shankman and his lawyers appear to be implying that it's illegal to be inspired by another site (and to admit it). But that's simply not true. They imply infringement on copyrights, trademarks and (unissued) patents -- as well as publicity rights and trade dress. It's like the grand slam of what's included in intellectual property law. Or, perhaps a better way of thinking about it is, if you don't have anything you can actually pin on the guy, why not throw the kitchen sink at him and hope he caves.

It's not clear where the copyright claim comes from. Shankman's lawyers say that Waggoner directly copied content from HARO, though I haven't seen that specifically. If that's the case, there may be an issue, but from what I can see, the two do appear to be pretty different. The two sites do have similar setups, but that's not illegal. Most blogs look generally similar. Most e-commerce sites look generally similar. Most news sites look generally similar. Most search engines look generally similar. So, what's the issue here? No one is going to look at one of these sites and confuse it for the other one -- not even the proverbial moron in a hurry, favored by trademark lawyers everywhere.

Next, Shankman's lawyers seem to think that Waggoner's acknowledgment of inspiration from HARO is a problem. This one strikes me as particularly funny. Most of the time, we hear about how many people would feel better about such situations, if the later participant at least credited who inspired them -- but in this case, Shankman's lawyers seem to be implying that this is illegal, though (tellingly) they don't cite what law this violates (that's because it doesn't violate any).

Then there are the desperation plays: claiming a violation of NY state's trade dress laws by "bad faith misappropriation of the labors and expenditures of another..." Except there's a bit problem for Shankman here, in that there doesn't appear to be any misappropriation of anything. Waggoner set up a different service that was inspired by Shankman, but that's not misappropriation. Should we only be allowed one fast food burger place? Or one pizza joint? Competition is the hallmark of American capitalism, and given Shankman's ongoing verbal competition with ProfNet, he should know that better than anyone. Furthermore, Shankmans' lawyers imply this was "deceptive," but there's no deception at all. Waggoner clearly states he was inspired by Shankman, but then wanted to do something better, targeted at a different niche.

Then there's the publicity/privacy rights claims (again under NY state law). While I'm not as familiar with New York's publicity rights laws, it seems silly that a note accurately explaining how you were inspired by someone to start a service would run afoul of any publicity rights law. It certainly didn't imply endorsement by Shankman.

Also, it's amusing that the lawyers warn of a pending patent, but since the patent hasn't issued (or even been published, as far as I can tell) they never bother to mention it again. I'm sorry, but you can't patent connecting sources to reporters.

Anyway, given all this, it's particularly ridiculous that Shankman's lawyers then demand not only that Waggoner cease from operating the site, but that he also turn over his domain names to Shankman.

In the comments to Waggoner's blog post about this, another person claims that she received a similar legal nastygram from Shankman's lawyers a while back upon starting another similar, but niche-focused service.

Either way, Shankman should apologize to Waggoner, and admit that you can't copyright, trademark or patent just an idea. Competition is a good thing, and the fact that Shankman seems too afraid to actually compete in the marketplace perhaps says something about the quality of his service. I'd heard good things about HARO for a while, but incidents like this make me wonder.

Re: Competition

By the attorney's reasoning, Apple should send Microsoft a cease-and-desist letter, since Microsoft is in the same business, but Apple was there first.
and the company I used to work for (Ferranti) could have monopolised the entire computer industry for ever - since they produced the world's first commercial computer!

Re: Competition

Perspective

Competition is a good thing, and the fact that Shankman seems too afraid to actually compete in the marketplace perhaps says something about the quality of his service. I'd heard good things about HARO for a while, but incidents like this make me wonder.

Not for the incumbents, it isn't. If it's easier to hinder market entry via lawsuits than via innovation, then unsurprisingly many businesses will do precisely that. I think it may reveal something about a company's intentions if they compete instead - because it means they are intending to improve their product anyway - but it doesn't really mean that the typical business's product is bad if they don't.

Hopefully this fails at great cost to Shankman and very little to Waggoner, but if it doesn't then it just validates Shankman's strategy. Don't hate the player, hate the game. And then change the rules.

"admit that you can't copyright, trademark or patent just an idea"
Judging by the things that have been granted patents, you could probably patent the idea of having an idea if you tried (unless it's already taken).

This is not new. A few weeks ago I read about a lawsuit over a restaurant theme. A restaurant in Florida is alleged to have used the same "heart attack" theme as a restaurant in Arizona.

I found it hilarious that the lawyers were arguing about nonsense, e.g., that the themes were actually quite different.

That's nonsense because it completely ignores the fact that restraint themes are not given government monopolies.

So it simply does not matter if the exact themes were used. It happens all the time. There are millions of restaurants with Italian, sports, entertainment, etc. themes, because there is no such protection. Why didn't the lawyers not argue that? Didn't they know?

I think Profnet should sue the hell out of him then. He admits his was based on theirs!

Really sad to go out there and abuse the legal system and just claim anything and everything, hoping to either scare the new guy or hope to find one legal leg to stand on out of many and get him. Sad how the copyright, trademark, patent laws are being trashed by those that are afraid of a little competition. Oh he wants to compete, then I know there is a copyright, trademark, patent that I can use to put him out of business and continue on my monopolistic way to the top.

This is why the laws need be written to stop this abuse. Making false claims and lawsuits should have a penalty. And they should have to pay for the legal fees and costs of those they are trying to hurt.

Same thing happened to my friend

I'm glad to see this addressed. My friend got one of these letters too. It was ridiculous because the service was quite different and not inspired by HARO (even if it was...big deal). HARO is basically an email newsletter...with an ad on top.

HARO's strength is in the numbers. It's the first and the largest. It's very high quality. He's tied in with a lot of PR folks. I don't see the need to aggressively pursue competitors - just keep the product quality up.

I want a HARO for bloggers specifically. The other services aren't that efficient.

The Reverse Streisand Effect

It's cruft like this that makes people leave a service to find others that meet their needs which aren't run by such meatheads. I believe that Shankman and HARO are going to regret deeply of their baseless claims and needless harassment of others. Shame on him!

Re: Perspective

"Don't hate the player, hate the game."

I want to smack the first person who ever said that. It's a cop-out for exploiting the rules of the "game" at the expense of other "players". Capitalism isn't supposed to be at anyone else's expense, it's supposed to be about making your poduct better so that consumers buy yours instead. Which, yes, ends up to be detrimental to the other guy, but only if he can't compete; you didn't try to exploit/damage/defame him.

"And then change the rules."

That's kind of what the readers of this site want to do. Unfortunately, it hasn't worked....yet(?)

Thanks to all!

Just wanted to say thanks to everyone for your supportive comments. Friday was a very stressful day, but since I decided to publicly post all of this, I've received a ton of support and encouragement from folks all over the web, which I deeply appreciate. Please don't hesitate to ask me any questions or let me know if I can help you with anything!

Re: Re: Perspective

Yep, except that the current U.S. economy doesn't remotely resemble capitalism anymore. Capitalism works because of individual self-interest, not in spite of it. It's not a "cop-out" because the competition will do it, too; if you're not pursuing the same legal options as others, you better be good or lucky or you're going to lose.

And I know most of the readers here would prefer to merely change the rules, but for whatever reason more anger is always directed at the businesses than the government, and then the fix becomes not changing the rules, but having the government intervene against "greedy CEOs" for problems that the government created. So I always try to take the opportunity to point out that no matter what venue you're discussing - sports, board games, economics, etc. - the players will do what they can to win under the rules. Complaining about that fact is just swimming upstream.

Re: Competition

Re: Re: Re: Perspective

"but for whatever reason more anger is always directed at the businesses than the government"

It seems to me that a lot of anger is directed at both.

However, the companies are not obligated to behave immorally just because the law allows them to get away with it. That's why it's a cop-to to "hate the game, not the player." The companies should do what's right even if they are legally permitted to do what's wrong. And the people they are doing wrong (us, ultimately) should hate that behavior. And the rules that allow it.

You see, in the end, it's impossible to legislate anybody or anything into good behavior. There's always a loophole. So we must rely on ethics and apply social & economic pressure to encourage entities to adhere to those ethics.

So yes, absolutely hate the player. And hate the game. And change them both.

Re: Re: Competition

and the company I used to work for (Ferranti) could have monopolised the entire computer industry for ever - since they produced the world's first commercial computer!

But Charles Babbage did before that, and if you want to look at it differently, one could even say the inventor of the 'book' would have a claim to 'making information available in a concise format'. It could be taken further in that without languages, none of this 'information' would actually be useful...

Re: Re: Re: Perspective

"more anger is always directed at the businesses than the government"

Quick question: what reason have you to believe that those two entities are in any way separate? They're the same people. High ranking members of business and govt. flit in and out of positions in both with ridiculous ease....

Re: Re: Re: Re: Perspective

Well, for me it's sort of like flopping in a basketball game. Sure, I detest perennial floppers on principle and root for them to go down with a career-ending knee injury or something, but I understand why they do it and don't expect that they'll cease flopping just because they didn't really get hit that hard - they're rewarded for it by the refs, so they continue to do it. And if there's a little contact and they don't flop, there's a pretty decent chance they'll get called for a hand-check or a blocking foul so just about everyone flops at some point or another.

If we want to end flopping in basketball, we need to change the way the game is called. This is obviously much easier said than done, but we're not gonna convince floppers to stop doing it unless it ceases to be in their best interest to do so. And this is for a game where the primary objective is not just winning, but having fun, taking bragging rights, and entertaining the fans(Off the court, money is of course the biggest objective in the NBA). Obvious flopping doesn't do any of that.

On the other hand, the primary objective for businesses is running a profit, and it can make a big difference in the quality of employees' lives. I hope this lawsuit fails horribly as much as you do, but there's no real point in attempting to change the behavior of the players - as difficult as it is with our current interventionist politicians, reforming IP laws is still much more achievable than going against human nature and changing our entire culture.

Re: Grand Slam

Re: Re: Re: Re: Perspective

Because...even businessmen are not the same as every other businessman, and every government official is not the same as every other government official. Do Barack Obama and Harry Reid share the same interests and work together toward a common goal? Do Google/Microsoft or Google/AT&T or Microsoft/Apple all work together in harmony because all businesses are conspiring together against the people? Is Shankman suing Waggoner because they're both businessmen making a profit together?

All of them are in competition with each other. That one is a businessman, or a politician, or both is irrelevant. The difference is that businesses have no legal power whatsoever to force others into actions not mutually agreeable without that granted by the government. The government doesn't have to answer to anybody - if they don't like you, they can seize your assets or throw you in jail. And they make laws that instead of setting an equal playing field, cherry pick winners and losers based on political favoritism. If you're a businessman and you have your fortune invested in your company, are you going to stick to your principles all the time knowing that a competitor may very well bribe a senator or bankrupt you in court and thereby knock you out of the competition? Or are you going to do what is legally available to you to win?

It certainly doesn't look like Shankman needs to be suing anybody here, and his arguments are clearly a bunch of bullshit. But as a rule, businessmen will fight other businessmen not just in the market, but also in court and in Washington because the game is not a free market anymore.

Re: Re: Re: Re: Re: Perspective

I have no idea what "flopping" in basketball is, but I'll assume that it's something nefarious but legal nonetheless.

In any case, what you articulate here is a world apart from what you say with "hate the game, not the players," and I largely agree with you here except for one particular.

Yes, changing the behavior of the players is enormously difficult. However, it's no more or less difficult than changing the rules of the game (particularly since it's the players who are writing the rules of the game.) It's daunting to fix this stuff and will take a huge effort over a long time, but we can't do it by addressing only one side of this equation. We must address both.

Re: Re: Re: Re: Re: Perspective

"Do Barack Obama and Harry Reid share the same interests and work together toward a common goal? Do Google/Microsoft or Google/AT&T or Microsoft/Apple all work together in harmony because all businesses are conspiring together against the people?"

At least as often as not, the answer is "yes." The government is now geared to benefit corporations, not the people. It's not so much conspiring against the people as conspiring for maximum profit, even at the expense of people. And yes, they do indeed work together to do this.

Re: Re: Re: Re: Re: Perspective

"The government doesn't have to answer to anybody"

Sorry, I don't agree. Government has to answer to those that govern THEM. Sadly, that isn't us. It's a series of banking and business institutions. You can find them in various societies aimed at providing said influence. I would recommend the first couple chapters in the link below:

Re: Re: Re: Re: Re: Re: Perspective

The government is now geared to benefit corporations

I'm sure the corporations will be very happy to hear this news. Given the extremely high corporate, capital gains, payroll, and upper income tax rates, not to mention burdensome(and ineffective) regulations, strong antitrust and pro-union sentiment, and excessive and unconstituional government interference(for instance, the government's royal screwjob of Chrysler's creditors for the benefit of the unions) among others, you could forgive them for being somewhat relieved.

Re: Re: Re: Re: Re: Re: Perspective

Actually, it's my contention that you have that backwards. It's the politicians and their appointees that are cherry picked by business, which then has their minions do their bidding.

We still vote for them. The days of Tammany Hall are over; politicians have to procure actual votes to get elected(of course, there's plenty of voter fraud conducted by the campaigns). Once they're in there, they sell out their services to the highest bidder(or to those that contributed the most to their campaigns).

They are not compelled to do so, however, and may act as they damn well please. And like I said, the bidders come from all sides. Why do you only mention businesses "owning" government? Unions have far more influence with the current Congress/White House, being that Democrats have a significant majority, not to mention many NGOs that ostensibly exist to offer social services.

Brisbane

Reporters need sources now? Obviously you haven't heard ot a little company owned by Murdoch called News Corp, whose media in Australia (News Ltd which is a majority owned by News Corp) are widely known to completely make stories up but stick "believed to be" or something similar in front of their made up claims so they can never be sued.

Shameful Lawyers

As a laywer I am always ashamed when I read reports like this. The only way such bogus claims get advanced is because some lawyer has lost all sense of responsibility to the law not simply to the client. It doesn't matter that Shankman will just go down the street if you say no. Say no anyway and refuse to represent meritless harmful claims

Re: Re: Re: Competition

speaking of legality

Is it legal for a company to use the logos of other companies on their site without their permission?

I wonder if the "news agencies that use HARO" (http://helpareporter.com/) gave their permission to have their logos run on the bottom of the HARO site.

The way that reads, it sounds like these companies are all customers of HARO. In fact, it's just some of their employees (acting on their own accord) that occasionally post to HARO. I wonder how legal that is.

Not surprised by this ego-maniac doing this..a long time ago a very smart business person said to me "I will bury myself spending time going after people who try to copy me." I suspect his ego and his insecurities will make him a thing of the past very soon.

Although the sites have a similar concept, I'm pretty sure that the the creator of prmanna can be sued. If that was the case then McDonald's would be suing Wendy's for starting a fast food burger chain. There are so many new businesses that get ideas from other businesses and then find a way to do it better.